6
MALONE v. THE UNITED KINGDOM JUGDMENT
II. RELEVANT LAW AND PRACTICE
A. Introduction
19.
The following account is confined to the law and practice in
England and Wales relating to the interception of communications on behalf
of the police for the purposes of the prevention and detection of crime. The
expression "interception" is used to mean the obtaining of information about
the contents of a communication by post or telephone without the consent of
the parties involved.
20. It has for long been the practice for the interception of postal and
telephone communications in England and Wales to be carried out on the
authority of a warrant issued by a Secretary of State, nowadays normally the
Secretary of State for the Home Department (the Home Secretary). There is
no overall statutory code governing the matter, although various statutory
provisions are applicable thereto. The effect in domestic law of these
provisions is the subject of some dispute in the current proceedings.
Accordingly, the present summary of the facts is limited to what is
undisputed, the submissions in relation to the contested aspects of these
provisions being dealt with in the part of the judgment "as to the law".
21. Three official reports available to the public have described and
examined the working of the system for the interception of communications.
Firstly, a Committee of Privy Councillors under the chairmanship of
Lord Birkett was appointed in June 1957 "to consider and report upon the
exercise by the Secretary of State of the executive power to intercept
communications and, in particular, under what authority, to what extent and
for what purposes this power has been exercised and to what use
information so obtained has been put; and to recommend whether, how and
subject to what safeguards, this power should be exercised ...". The
Committee’s report (hereinafter referred to as "the Birkett report") was
published in October 1957 (as Command Paper 283). The Government of
the day announced that they accepted the report and its recommendations,
and were taking immediate steps to implement those recommendations
calling for a change in procedure. Subsequent Governments, in the person
of the Prime Minister or the Home Secretary, publicly reaffirmed before
Parliament that the arrangements relating to the interception of
communications were strictly in accordance with the procedures described
and recommended in the Birkett report.
Secondly, a Command Paper entitled "The Interception of
Communications in Great Britain" was presented to Parliament by the then
Home Secretary in April 1980 (Command Paper 7873 - hereinafter referred
to as "the White Paper"). The purpose of the White Paper was to bring up to
date the account given in the Birkett report.